Citation Nr: 0521424
Decision Date: 08/09/05 Archive Date: 08/19/05
DOCKET NO. 03-27 982 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Whether new and material evidence has been received to reopen
a claim for service connection for post-traumatic stress
disorder (PTSD).
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
Appellant and his spouse.
ATTORNEY FOR THE BOARD
M. Tenner, Counsel
INTRODUCTION
The veteran served on active duty from December 1967 to
January 1971. He served in Vietnam for 20 months. He is the
recipient of the Vietnam Defense Service Medal, the National
Defense Service Medal, the Vietnam Campaign Medal, and the
Army Commendation Medal.
In a June 2000 decision, the Board of Veterans' Appeals
(Board), in pertinent part, denied the veteran's claim for
service connection for post-traumatic stress disorder (PTSD).
In March 2003, the veteran attempted to reopen the claim for
service connection for PTSD.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a decision rendered by the Columbia, South
Carolina Regional Office (RO) of the Department of Veterans
Affairs (VA) that denied reopening service connection for
PTSD. The appellant indicated disagreement with that
decision and, after being furnished a statement of the case,
filed a substantive appeal.
In April 2005, the veteran testified during a videoconference
hearing before the undersigned Veterans Law Judge. A
transcript of the proceeding is of record. At the conclusion
of the hearing, the veteran submitted additional evidence
accompanied by a waiver of initial RO review of such
evidence.
The issue of service connection for PTSD is addressed in the
REMAND portion of the decision below and is REMANDED to the
RO via the Appeals Management Center (AMC), in Washington,
DC.
FINDINGS OF FACT
1. In a June 2000 decision, the Board denied the veteran's
claim for service connection for PTSD. Reconsideration of
this Board decision has not been requested, on motion, by the
veteran or his representative, or by the Board. That is the
last final decision on any basis.
2. The veteran has submitted additional evidence regarding
in service stressors that he alleges contributed to his
current diagnosis of PTSD. The additional evidence received
since June 2000 is new, as it was not of record at the time
of the June 2000 Board decision, and material, as it relates
to an unestablished fact necessary to substantiate the claim.
CONCLUSIONS OF LAW
1. The June 2000 Board decision denying service connection
for PTSD is final. 38 U.S.C.A. §§ 511(a), 7103(a), 7104
(West 2002); 38 C.F.R. § 20.1100 (2004).
2. New and material evidence has been received to reopen the
claim of entitlement to service connection for PTSD. 38
U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2004).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Duties to Notify and Assist
The Veteran's Claims Assistance Act (VCAA), and its
implementing regulations, essentially eliminates the
requirement that a claimant submit evidence of a well-
grounded claim. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5107, and 5126 (West 2002); 38 C.F.R. § 3.102, 3.156, 3.159,
and 3.326 (2002). The VCAA and its implementing regulations
provide that VA will assist a claimant in obtaining evidence
necessary to substantiate a claim, including obtaining
medical examinations or opinions if necessary. VA is not
required to provide assistance to a claimant, however, if
there is no reasonable possibility that such assistance would
aid in substantiating the claim. See id.
The United States Court of Appeals for Veterans Claims
(Court) has concluded that the VCAA was not applicable where
further assistance would not aid the appellant in
substantiating his or her claim. Wensch v. Principi, 15 Vet
App 362 (2001); see 38 U.S.C.A. § 5103A(a)(2) (Secretary not
required to provide assistance "if no reasonable possibility
exists that such assistance would aid in substantiating the
claim"). In this case, the Board finds that new and
material evidence has been received to reopen the appellant's
claim. Thus, further assistance is unnecessary to aid the
appellant in substantiating his claim.
II. Background and Analysis
The veteran is seeking to reopen service connection for PTSD.
He contends that currently diagnosed PTSD is due to combat-
related stressors experienced during service in Vietnam.
The issue of entitlement to service connection for PTSD was
denied by the RO in May 1997. The veteran appealed the
decision. In a June 2000 decision, the Board, in pertinent
part, denied service connection for PTSD. The Board
determined that while the veteran had a current diagnosis of
PTSD, he did not serve in combat, and his alleged stressors
were not verified.
Unless the Chairman of the Board orders reconsideration, all
decisions of the Board are final on the date stamped on the
face of the decision. 38 C.F.R. § 20.1100; see also 38
U.S.C.A. §§ 511(a), 7103(a), 7104(a). Because the record
does not reflect that the veteran or his representative, or
the Board requested reconsideration of the June 2000 Board
decision, the decision is final based on the evidence then of
record. 38 U.S.C.A. § 7104; 38 C.F.R. §§ 20.1100.
With respect to a claim that has been finally disallowed, the
law and regulations provide that if new and material evidence
has been presented or secured, the claim may be reopened and
the former disposition reviewed. 38 U.S.C.A. § 5108. "New
evidence" is evidence not previously reviewed by VA
adjudicators. "Material evidence" is existing evidence,
that, by itself or when considered with previous evidence of
record, relates to an unestablished fact necessary to
substantiate the claim. New and material evidence can be
neither cumulative nor redundant of the evidence of record at
the time of the last final denial of the claim sought to be
reopened, and must raise a reasonable possibility of
substantiating the claim. 38 C.F.R. § 3.156(a) (effective
August 29, 2001). See also Hodge v. West, 155 F.3d 1356 (Fed
Cir 1998); see also Evans v. Brown, 9 Vet. App. 273 (1996).
Furthermore, the Court has stated that in determining whether
the evidence is new and material, the credibility of the
newly presented evidence is to be presumed. See
Kutscherousky v. West, 12 Vet. App. 369, 371 (1999) (per
curiam) (holding that the "presumption of credibility"
doctrine, as articulated in Evans v. Brown, 9 Vet. App. 273
(1996), was not altered by the ruling in Hodge, and continues
to be binding precedent). The Board is required to give
consideration to all of the evidence received since the last
disallowance of this claim on any basis, in this case, since
the Board decision in June 2000. See Hickson v. West, 12
Vet. App. 247, 251 (1999).
Evidence before the Board in June 2000 included the veteran's
service medical and personnel records, testimony provided
during a hearing at the RO, a VA examination report, and
documents supplied by the Center for Unit Records Research
(CURR).
The veteran's service records reflected that he served in
Vietnam from July 1968 to March 1970. His military
occupational specialty (MOS) in Vietnam was a chart operator.
He served in the C Battery, 5th Battalion, 16th Artillery, 4th
Infantry Division. On a stressor statement submitted in May
1996, the veteran alleged that he was involved in a friendly
fire incident on May 9, 1969, that resulted in the deaths of
3 American soldier and injuries to several others. During a
December 1996 VA examination, the veteran was diagnosed with
PTSD. Records submitted by CURR in May 1997 did not verify
the friendly fire incident.
Since the June 2000 Board decision, the veteran has submitted
a new VA PTSD stressor statement, Morning Reports, VA
outpatient treatment records, a February 2003 psychiatric
examination report, copies of service records, and testimony
before the undersigned in April 2005.
On the veteran's PTSD stressor statement, the veteran
reported two events that he felt contributed to his current
claim for service connection for PTSD. He stated that in
September or October 1968, while in Ban Me Thout, his unit
was attacked by a company of Viet Cong. He stated that they
penetrated the perimeter defense. His firing battery had to
lower its artillery gun tubes and fire "beehive" rounds to
stop the attack. He alleged that they killed 30-40 Viet Cong
soldiers. He also stated that the previously alleged
incident on May 9, 1969 involving the 25th Infantry Division
also involved an attack thy North Vietnamese troops and Viet
Cong.
The VA outpatient treatment records show continued treatment
for PTSD. During treatment in November 2004, the veteran
reported that he was in Vietnam during the TET offensive
right before Christmas in 1968. He reported that he
volunteered for service and served two tours of duty in
Vietnam. During treatment in December 2004, the veteran
reported extreme guilt over an erroneous coordinate
determination that resulted in the deaths of several
soldiers. The diagnosis was PTSD, chronic, severe, and
depressive disorder, not otherwise specified.
During testimony at the hearing in April 2005, the veteran
representative alleged that as a chart operator the veteran
had to serve in a combat capacity when his unit was attacked.
The veteran's spouse testified that the veteran came back
from Vietnam a broken man. The veteran stated that he had
friends who were killed in Vietnam. He thought that he had
previously supplied the names of them to VA. He stated that
he received Social Security disability benefits solely as a
result of his PTSD.
On the basis of the foregoing, the Board finds that new and
material evidence has been received to reopen the veteran's
claim for service connection for PTSD. In this matter, the
fact that the veteran has a current diagnosis of PTSD is
undisputed. The unestablished fact necessary for a grant of
service connection is whether the veteran served in combat
and/or whether his alleged stressors are capable of being
substantiated. In this respect, since the last final denial
of the claim, the veteran has submitted new evidence
regarding participation in combat as well as additional
evidence of stressors that he believes led to the development
of his PTSD. In short, the evidence received since the June
2000 Board decision is new, to the extent that it was not
previously of record. Moreover, and presuming the
credibility of the evidence, it is material as it relates to
an unestablished fact and raises a reasonable possibility of
substantiating the claim. As such, the Board finds that new
and material evidence has been received and accordingly will
review the claim for service connection on the merits. See
38 U.S.C.A. § 5108; 38 C.F.R. § 3.156.
ORDER
New and material has been received to reopen the claim for
service connection for PTSD; to this limited extent, the
appeal is granted.
REMAND
In light of the Board's decision above that the claim of
service connection for PTSD is reopened, the claim must be
reviewed on a de novo basis. In order to ensure that the
veteran's procedural rights are protected insofar as he is
provided adequate notice and opportunity to present argument
and evidence on the underlying question of service
connection, a remand of the case to the RO is indicated. See
Bernard v. Brown, 4 Vet. App. 384, 394 (1993).
The Board must also consider the impact of the Veterans
Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. §§ 5100 et
seq. (2001). The VCAA redefined VA's duty to assist and
enhances the duty to notify claimants about information and
evidence necessary to substantiate a claim. These laws and
regulations also include new notification provisions. As
such, a VCAA letter must specifically: (1) inform the
claimant about the information and evidence not of record
that is necessary to substantiate the claim; (2) inform the
claimant about the information and evidence that VA will seek
to provide; (3) inform the claimant about the information and
evidence the claimant is expected to provide; and (4) request
or tell the claimant to provide any evidence in the
claimant's possession that pertains to the claim. See
38 U.S.C.A. § 5103 (West 2002); 38 C.F.R. § 3.159(b) (2004).
In this case, while the veteran was provided correspondence
that pertained to the requirements to reopen claims on the
basis of new and material evidence, he has not been provided
any correspondence from the RO that satisfies the criteria
for claims for service connection. As such, the Board finds
that the veteran should be provided correspondence from the
RO specifically addressing the VCAA notice and duty to assist
provisions as they pertain to the claim for service
connection for PTSD, to particularly include the duty,
imposed by 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b),
requiring the VA to explain what evidence will be obtained by
whom. See Charles v. Principi, 16 Vet. App. 370 (2002);
Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Action
by the RO is required to satisfy the notification provisions
of the VCAA. See Disabled American Veterans v. Secretary of
Veterans Affairs, 327 F. 3d 1339 (Fed. Cir. 2003).
The Board finds that the RO should undertake development to
verify the stressful experiences described by the veteran.
Thus, as part of the development above, the RO should contact
the veteran and provide him another opportunity to provide
additional information and, if possible, evidence, concerning
his alleged stressors. Since there is no legal requirement
that only official records must establish the occurrence of
specific in-service stressful experiences, the veteran should
be invited to submit statements from former service comrades
or others that establish the occurrence of his claimed in-
service stressful experiences. If these actions do not
produce evidence that sufficiently corroborates the
occurrence of a claimed in-service stressful experience, then
the RO should also attempt to corroborate the specifically
claimed events independently.
Finally, the record reflects that the veteran is the
recipient of Social Security disability payments. The
veteran alleges that he receives Social Security disability
benefits solely as a result of his PTSD. While Social
Security records are not controlling for VA determinations,
they are certainly "pertinent" to the claim. Collier v.
Derwinski, 1 Vet. App. 412 (1991); Murincsak v. Derwinski, 2
Vet. App. 363 (1992). Accordingly, as these matters are
being remanded for other reasons above, the Board finds upon
remand, that the RO should attempt to secure these records.
Accordingly, this matter is REMANDED to the RO, via the AMC,
for the following actions:
1. With respect to the issue of
entitlement to service connection for
PTSD on the merits, the RO should send
the veteran and his representative a
letter that complies with the
notification requirements of 38 U.S.C.A.
§ 5103(a) and 38 C.F.R. § 3.159(b).
Among other things, the letter should
explain what, if any, information and
(medical and lay) evidence not previously
provided to VA is necessary to
substantiate the veteran's claim for
service connection. The letter should
indicate which portion of the evidence,
if any, is to be provided by the veteran
and which portion, if any, VA will
attempt to obtain on his behalf. The
letter should also request that the
veteran provide any evidence in his
possession that pertains to the claim.
The RO's letter should also invite the
veteran to submit statements from former
service comrades or others that establish
the occurrence of his claimed in-service
stressful experiences, and any military
records in his possession.
2. The RO should detail the new
stressors claimed by the veteran, with
his further assistance if needed, then
request that the United States Armed
Services Center for Research of Unit
Records (CURR) provide any available
information that might corroborate the
veteran's new alleged in-service
stressors. The RO should provide CURR
with documentation detailing any new in-
service stressors alleged by veteran, as
noted above. The RO should follow up on
any additional development suggested by
the CURR.
3. After receiving a response from CURR
(and any other contacted entity), the RO
should review the claims file, to
specifically include all records received
from CURR, and prepare a report
addressing whether the claims file
establishes the occurrence of any
specifically claimed in-service stressful
experience. This report is to be added
to the claims file.
4. The RO should contact the Social
Security Administration and obtain a copy
of any Social Security disability award
and records relied upon in making any
award.
5. Thereafter, the RO should
readjudicate the claim for service
connection for PTSD de novo in light of
all pertinent evidence and legal
authority.
6. If any benefit sought on appeal
remains denied, the RO must furnish to
the veteran and his representative an
appropriate supplemental statement of the
case (to include clear reasons and bases
for the RO's determinations) and afford
them the appropriate time period for
response before the claims file is
returned to the Board for further
appellate consideration.
The purpose of this REMAND is to afford due process; it is
not the Board's intent to imply whether the benefits
requested should be granted or denied. The veteran need take
no action until otherwise notified, but he may
furnish additional evidence and/or argument during the
appropriate time frame. See Kutscherousky v. West, 12 Vet.
App. 369 (1999); Colon v. Brown, 9 Vet. App. 104, 108 (1996);
Booth v. Brown, 8 Vet. App. 109 (1995); Quarles v. Derwinski,
3 Vet. App. 129, 141 (1992).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans Benefits Act of 2003, Pub. L. No. 108-183, §
707(a), (b), 117 Stat. 2651 (2003) (to be codified at 38
U.S.C. §§ 5109B, 7112).
______________________________________________
MICHAEL D. LYON
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs